People v. Player CA6

Filed 5/19/21 P. v. Player CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H047887 (Monterey County Plaintiff and Respondent, Super. Ct. No. 18CR006065)

v.

DAVID PLAYER,

Defendant and Appellant.

Defendant David Player appeals after a jury convicted him of two counts of possession of a weapon while in custody. (Pen. Code, § 4502, subd. (a).1) The jury found true allegations that defendant had three prior convictions that qualified as “strikes.” (§ 1170.12.) The trial court sentenced defendant to an aggregate prison sentence of 50 years to life, to be served consecutively to the life terms that defendant was already serving. The trial court ordered defendant to pay a $10,000 restitution fine (§ 1202.4, subd. (b)) and imposed but suspended a $10,000 parole revocation restitution fine (§ 1202.45, subd. (a)). Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant contends the trial court erroneously imposed the $10,0000 restitution fine and the suspended $10,000 parole revocation fine without finding he had the ability to pay.

1 Unspecified section references are to the Penal Code.

Defendant contends this court should reduce those fines to the $300 statutory minimum or stay the fines until the People demonstrate he has an ability to pay. As we explain below, we find defendant has failed to show he is entitled to reduction of the fines based on Dueñas. Therefore, we will affirm the judgment. I. BACKGROUND A. Defendant’s Prior Prison Sentences In 2000, defendant was sentenced to an indeterminate life term, consecutive to a 17-year determinate term, for convictions of attempted first degree murder (§ 664, 187, subd. (a)), attempted voluntary manslaughter (§ 664, 192, subd. (a)), second degree robbery (§ 211), and exhibiting a firearm in the presence of a peace officer (§ 417, subd. (c)), with firearm use enhancements (former § 12022.5, subd. (a)(1), § 12022.53, subd. (b)). In 2007, defendant was sentenced to an indeterminate term of “life without possibility of parole for 27 years, plus 5 years” for convictions of assault by a life inmate on a correctional officer (§ 4500) and possession of a weapon while in custody (§ 4502, subd. (a)). The trial court specified that the sentence was to be served consecutively to the sentence defendant was already serving. B. Defendant’s Current Convictions and Sentence The facts underlying defendant’s current convictions are not relevant to the issue defendant raises on appeal. Briefly, on two occasions, defendant was found in possession of an inmate-manufactured weapon while he was an inmate at Salinas Valley State Prison. First, on April 17, 2018, defendant had a “stabbing weapon” in the waistband area of his pants. The weapon had a sharpened metal end and a melted plastic handle, with a rubber band for grip. Second, on October 1, 2018, after defendant fought with another inmate, defendant retrieved a weapon from the ground and tried to throw it over a wall. The weapon had a metal end and a cloth handle.